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The fine line between a free lunch and forelock-tugging

Stephen Franks is no forelock-tugger. Brought up a working class lad in Taihape, ACT’s brainiest MP is a verbal brawler.

So why is Franks battling alongside the cultural cringe brigade to keep the British Privy Council as our final court of appeal?

Come to think of it, why is young National rising star Simon Power also in Alf’s imperial platoon? Aren’t the young, even young fogies of the middle-right, supposed nowadays to want this nation standing tall on its own feet?

And isn’t that the Privy Council point? Haven’t we got far enough through our trembling national adolescence to have our own highest court?

Maybe not. We took 16 years to ratify the 1931 British statute that threw us out of the empire. We clung economically till the British abandoned us for Europe in the 1970s. We worshipped British culture as our own until the 1980s.

But we now have our own fine filmmakers, novelists, poets, artists, musicians and craftspeople. In our diversified economy Britain plays a smaller part than Korea. Last year we self-satisfied mini-nationalists gave up automatic rights to Australian citizenship.

And we have produced fine legal minds. Former Appeal Court president Lord Cooke of Thorndon became a British law lord and sat on the Privy Council.

So can’t our judges be trusted to make binding decisions on our law?

No, say Franks and co.

First, they say, London is a great commercial centre, its numerous specialist commercial law judges are among the world’s best and they hear a lot of cases. Tinpot Auckland can’t match London.

That is a point. This economy is globalised. To attract investment, our commercial laws and their administration must be demonstrably world-class.

One ungainly option might be to appoint a retired London law lord or two to the proposed pool of acting judges for the new Supreme Court and draw on them for commercial cases.

But would they come and would it work? British judges increasingly pay attention to European law, inappropriate for our system. Law Lord Steyn, a Privy Council judge, underlined that European link here earlier this year. Ironically, Franks had a public fight with Steyn, an activist judge like Lord Cooke, over the Treaty of Waitangi.

Franks’ second objection is the same as Power’s: appointments.

Power says Margaret Wilson will not appoint the best Supreme Court available. Her bill appoints Chief Justice Sian Elias to head the court and one judge versed in tikanga Maori, widely touted to be Eddie Durie. Both are able High Court judges but not regarded among lawyers as absolutely top drawer.

Then look at Wilson’s appointments to the Human Rights Commission, Power and Franks say. The other three judges will likely be left-leaning. It’s a bit like American Presidents’ stacking of their Supreme Court — except that previous appointments of a different bias constrain Presidents and the first appointments here will not be constrained by a previous right-leaning bias.

Wilson counters that she will broaden the advice she gets and will follow it. And she has been trying to get the appointments process put under an independent commission. Another possibility so far not canvassed is that a multi-party group could agree the first nominees.

But even an independent commission wouldn’t satisfy Franks. The Privy Council’s beauty for him is its complete separation from this country’s politics, both parliamentary and legal.

Actually, New Zealand judges sit on the Privy Council and therefore influence its judgments. And separation has bred reticence in the council because British judges lack local knowledge: the council hears very few cases and increasingly, notably on Maori cases, kicks cases back to the Appeal Court here for final decision.

And the Appeal Court is overloaded. That accounts for some of the criticism of decisions. It is too fast. A Supreme Court hearing a tenth of the cases would do better.

But the Privy Council is free, says Franks. What dinkum kiwi puts national pride ahead of a free lunch? Indeed — except that the British are reviewing this hangover of empire and, when the Caribbean nations end appeals soon, may not want to pay for part of this country’s legal system.

But there hasn’t been enough debate, says Peter Dunne. The 20 years of debate since National’s Jim McLay proposed abolition has been mainly among the elite. Franks would accept a decision by referendum (though only with a super-majority). He says a mere parliamentary majority is not enough for a big constitutional change (hear, hear).

A substitute which might satisfy Dunne would be for the parliamentary committee on the bill actively to seek public input and tour the country holding high-profile hearings.

The bill will pass. The Greens are republicans and when they consult Maori, as they want to do before deciding, they will find monarchist objections from that quarter have diminished.

So the forelock-tugging will stop. Except, of course, that we will still have the Queen, God bless her.